TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as a Lecturer from 19 January 2009 until resignation on 7 October 2016 – applicant claimed he was forced to resign to enable access permanent disability insurance benefits and superannuation funds – was diagnosed with depression and anxiety leading to inability to attend work – provided medical certificate stating he could work with restrictions that included avoiding contact and working from home – applicant was advised that this was not possible and that no suitable duties could be assigned to him – medical report received by the respondent on 14 April 2014 stated applicant was unable to work for three months and may then be able to commence a return to work program – respondent requested a further medical examination on 2 July 2014 advising applicant would be on unpaid personal leave until then – applicant advised respondent he was too ill to attend the examination and that he was applying for temporary disability benefits through his superannuation fund – applicant did not resume work between 4 April 2014 and resignation – applicant resigned in order to access permanent superannuation entitlements – Commission found that the decision not to allow applicant to return to work until a certificate of capacity was obtained was reasonable – found refusal to allow modified duties and conclusion that working from home was impractical was reasonable – respondent did not breach obligations to assist the return to work of an injured employee – no obligation to pay applicant for time not worked – decision to refuse the applicant to work from home was not a decision to stand down the employee – decision to refuse work from home and place on approved unpaid personal leave was not a demotion – Commission not satisfied that the dispute over work from home forced applicant to resign – applicant resigned after not being able to work for several years due to need for income and incapacity for work – applicant not dismissed – unfair dismissal remedy cannot proceed – application dismissed. Weber v Deakin University
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